India : Gay couple launch legal battle over same-sex marriage

The love sto­ry of Utkarsh Sax­e­na and Ananya Kotia start­ed like any col­lege romance. How­ev­er, no one knew of the gay cou­ple’s relationship.

It was 2008. Homo­sex­u­al­i­ty was still unac­cept­able in con­ser­v­a­tive India, and many gay cou­ples faced stig­ma and lone­li­ness. There­fore, Sax­e­na and Cotia spent a lot of time research­ing the changes in peo­ple who accept­ed homo­sex­u­al­i­ty from a distance.

‚ÄúWe were actu¬≠al¬≠ly very scared of the con¬≠se¬≠quences,‚ÄĚ says Sax¬≠e¬≠na, a pro¬≠fes¬≠sor of pub¬≠lic pol¬≠i¬≠cy at the Uni¬≠ver¬≠si¬≠ty of Oxford. ‚ÄúWe were a very frag¬≠ile and vul¬≠ner¬≠a¬≠ble young cou¬≠ple dis¬≠cov¬≠er¬≠ing them¬≠selves, so I did¬≠n‚Äôt want to take the plunge that would break us in a way.‚ÄĚ

Years lat¬≠er, when Indi¬≠an soci¬≠ety became homo¬≠sex¬≠u¬≠al and much of the coun¬≠try‚Äôs LGBTQ com¬≠mu¬≠ni¬≠ty open¬≠ly cel¬≠e¬≠brat¬≠ed their sex¬≠u¬≠al¬≠i¬≠ty, the cou¬≠ple decid¬≠ed to open their rela¬≠tion¬≠ship to friends and fam¬≠i¬≠ly. . Most peo¬≠ple accept¬≠ed it.

After 15 years of dat¬≠ing, they took on a big¬≠ger chal¬≠lenge and filed a peti¬≠tion in Indi¬≠a‚Äôs Supreme Court to legal¬≠ize same-sex mar¬≠riage. Three oth¬≠er same-sex cou¬≠ples have filed sim¬≠i¬≠lar peti¬≠tions, which are due to be heard before the coun¬≠try‚Äôs Supreme Court in March.

Legal¬≠iz¬≠ing same-sex mar¬≠riage would make India the sec¬≠ond largest econ¬≠o¬≠my in Asia after Tai¬≠wan and would be a key right for the coun¬≠try‚Äôs LGBTQ com¬≠mu¬≠ni¬≠ty more than four years after the Supreme Court out¬≠lawed gay sex.

A favor­able rul­ing would also make India the largest democ­ra­cy with such rights for LGBTQ cou­ples, but would run counter to the rul­ing Hin­du nation­al­ist gov­ern­men­t’s stance against same-sex marriage.

‚ÄúOur rela¬≠tion¬≠ship has been unde¬≠fined in a social sense for a long time, and from now on, I want it to be accept¬≠ed like any oth¬≠er cou¬≠ple‚Äôs rela¬≠tion¬≠ship,‚ÄĚ Sax¬≠e¬≠na said.

Over the past decade, India has seen an expan­sion of legal rights for LGBTQ peo­ple, with most of that change brought about by Supreme Court interventions.

In 2014, it legal¬≠ly rec¬≠og¬≠nized non¬≠bi¬≠na¬≠ry and trans¬≠gen¬≠der peo¬≠ple as a ‚Äúthird gen¬≠der,‚ÄĚ and three years lat¬≠er made a person‚Äôs sex¬≠u¬≠al ori¬≠en¬≠ta¬≠tion an intrin¬≠sic attribute of privacy.

A land­mark 2018 rul­ing that over­threw a colo­nial-era law pun­ish­ing same-sex rela­tion­ships with up to 10 years in prison expand­ed con­sti­tu­tion­al rights for the gay community.

The rul¬≠ing was seen as a land¬≠mark vic¬≠to¬≠ry for gay rights, and one judge said it ‚Äúpaved the way for a bet¬≠ter future.‚ÄĚ

But the legal recog¬≠ni¬≠tion of same-sex mar¬≠riage has met resis¬≠tance from Prime Min¬≠is¬≠ter Naren¬≠dra Modi.

A court case last year said same-sex mar¬≠riage would ‚Äúcom¬≠plete¬≠ly dis¬≠rupt the del¬≠i¬≠cate bal¬≠ance of the coun¬≠try‚Äôs per¬≠son¬≠al law.‚ÄĚ

Sushil Modi, a mem¬≠ber of Mod¬≠i‚Äôs Bharatiya Jana¬≠ta Par¬≠ty, told par¬≠lia¬≠ment in Decem¬≠ber that such mar¬≠riages were ‚Äúagainst the coun¬≠try‚Äôs cul¬≠tur¬≠al ethics‚ÄĚ and had ‚Äúsev¬≠er¬≠al judges‚ÄĚ decide on the issue. said it should not be entrusted.

But Indi­a’s Supreme Court is show­ing signs of chal­leng­ing the gov­ern­men­t’s stance.

In Jan­u­ary, the pan­el, con­sist­ing of the chief jus­tice and two jus­tices, said the gov­ern­men­t’s oppo­si­tion to appoint­ing homo­sex­u­al judges was part­ly due to their sex­u­al ori­en­ta­tion. The Indi­an fed­er­al gov­ern­ment has not respond­ed to the allegations.

By deny­ing same-sex mar­riage, same-sex cou­ples and LGBTQ activists say the gov­ern­ment is depriv­ing same-sex cou­ples of their con­sti­tu­tion­al equal rights and oppor­tu­ni­ties enjoyed by mar­ried het­ero­sex­u­al couples.

‚ÄúBasi¬≠cal¬≠ly, they have to be treat¬≠ed like any oth¬≠er cit¬≠i¬≠zen. At home, says Ruth Bani¬≠ta, author of Love Rit¬≠u¬≠als: Same-Sex Mar¬≠riage in India and the West.

Mar¬≠riage in India is gov¬≠erned by a vari¬≠ety of laws tai¬≠lored to the coun¬≠try‚Äôs reli¬≠gious organ¬≠i¬≠sa¬≠tions, as well as a sec¬≠u¬≠lar law called the ‚ÄúSpe¬≠cial Mar¬≠riage Act‚ÄĚ for inter¬≠faith cou¬≠ples. All restrict mar¬≠riage between men and women.

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